Category Archives: Confidentiality

In November 2016, Georgia voters approved a constitutional amendment that abolished the extant Judicial Qualifications Commission in favor of a commission with a composition, manner of appointment, and governance to be determined in future legislation by the General Assembly. As widely reported, the bill to put the measure on the ballot was co-sponsored by a legislator who had been a judge until he resigned while under investigation by the Commission after a female attorney in a divorce case alleged in a motion to disqualify that he had sexually harassed her; the comments, recounted in a hearing on the motion, were too graphic to be repeated on air or in an on-line article, according to a TV station. Legislators defended the measure, however, by pointing to complaints of unfair treatment by two of the hundreds of judges who have had complaints filed against them with the Commission.

Prior to the amendment, there were 7 members on the Commission: 2 judges appointed by the Georgia Supreme Court, 3 attorneys appointed by the State Bar, and 2 public members appointed by the Governor. Under the implementing legislation, the Bar’s appointment authority was eliminated. (According to news reports, the Speaker of the House has had a bar complaint pending against him for years and threatened to pursue legislation to eliminate mandatory Bar membership if the Bar campaigned against the constitutional amendment, which it decided not to do.) On the newly constituted commission, there would be 3 attorney members, 1 each appointed by the Speaker of the House and the President of the Senate from lists of nominees by the Bar, and 1 appointed by the Governor to serve as chair. The Supreme Court would appoint 2 judge members. The Speaker and the President would appoint 1 citizen member.

That legislation also drastically increased the secrecy of the Commission, making proceedings confidential through the formal charges, hearing, and recommendation stages and informing the public only if the Georgia Supreme Court decided to issue a public reprimand or censure or to suspend, retire, or remove the judge. Prior to the amendment, the Commission’s proceedings became public at the filing of formal charges, which is also the rule in 26 states with an additional 6 states opening up after the judge files an answer to the charges and an additional 2 making the hearing public. The level of confidentiality adopted for the new Georgia commission seems inconsistent with the legislators’ claims that more accountability was the goal of the amendment; the less public a commission’s actions, the less likely any unfair treatment of judges or by judges will be disclosed.

However, in late January, new legislation was introduced called “The Judicial Qualifications Commission Improvement Act of 2017.” Among the changes if it is enacted would be a reversion to the former confidentiality rule, with all pleadings and information in disciplinary matters subject to disclosure to the public and all hearings and proceedings open and available to the public after the filing and service of formal charges.

The new bill also proposes a 10-member commission, divided into a 7-member investigative panel and a 3-member hearing panel. The 7 members of the investigative panel would be appointed by the Georgia Supreme Court (2 judges), the Speaker of the House (1 attorney and 1 citizen), the President of the Senate (1 attorney and 1 citizen), and the Governor (1 attorney who would be chair). The hearing panel would consist of 1 citizen member appointed by the Governor and 1 attorney member and 1 citizen member appointed by the Court. The investigative panel would be responsible for the commission’s investigative, prosecutorial, and administrative functions; the hearing panel would adjudicate formal charges filed by the investigative panel and make recommendations to the Supreme Court as to disciplinary and incapacity orders.

As is its tradition, the New York Commission also includes “observations and recommendations” in its report, the only commission that does so. The section discusses “topics of special note or interest that have come to [the Commission’s] attention in the course of considering complaints . . . for public education purposes, to advise the judiciary as to potential misconduct that may be avoided, and pursuant to its statutory authority to make administrative and legislative recommendations.” The 2014 report discusses the Commission’s budget; fund-raising for charitable organizations (suggesting, for example, that judges should advise the leaders of a charitable organization “that they not use the judge’s name in fundraising appeals”); misleading judicial campaign advertisements (giving “fair notice” that “campaign materials phrased in a way to make it appear that a challenger already holds the particular office for which he or she is running” will “result in public discipline more readily than before”); and moving up the point at which disciplinary proceedings public.

The New York Commission is one of only 15 judicial discipline commissions that are required by law to keep confidential the formal complaints it may file after investigations and the fact-finding hearings it holds on those complaints. The Commission has advocated more public access to its proceedings since 1978, and its arguments in favor of that reform, which it repeats in the 2014 annual report, are persuasive, not only for New York but for every jurisdiction.

The Commission emphasizes that confidential hearings are inconsistent with the “fundamental premise of the American system of justice, since the founding of the republic, that the rights of citizens are protected by conducting the business of the courts in public.”

Not only does the public have a right to know when formal charges have been [filed] by a prosecuting authority against a public official, but the prosecuting entity is more likely to exercise its power wisely if it is subject to public scrutiny. A judge as to whom charges are eventually dismissed may feel his or her reputation has been damaged by the trial having been public. Yet the historical presumption in favor of openness is so well established that criminal trials, where not only reputations but liberty are at stake, have been public since the adoption of the Constitution.

There are practical as well as philosophical considerations in making formal judicial disciplinary proceedings public. The process of evaluating a complaint, conducting a comprehensive investigation, conducting formal disciplinary proceedings and making a final determination subject to review by the Court of Appeals takes considerable time. The process is lengthy in significant part because the Commission painstakingly endeavors to render a determination that is fair and comports with due process. If the charges and hearing portion of a Commission matter were open, the public would have a better understanding of the entire disciplinary process. The very fact that charges had been served and a hearing scheduled would no longer be secret.

As it is, maintaining confidentiality is often beyond the Commission’s control. For example, in any formal disciplinary proceeding, subpoenas are issued and witnesses are interviewed and prepared to testify, by both the Commission staff and the respondent-judge. It is not unusual for word to spread around the courthouse, particularly as the hearing date approaches. Respondent judges themselves often consult with judicial colleagues, staff and others, revealing the details of the charges against them and seeking advice. As more “insiders” learn of the proceedings, the chances for “leaks” to the press increase, often resulting in published misinformation and suspicious accusations as to the source of the “leaks.” In such situations, both confidentiality and confidence in the integrity of the disciplinary system suffer.

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A recent judicial discipline case is a reminder of the importance of the prohibition on ex parte communications.

In the case, the North Carolina Supreme Court publicly reprimanded a judge who had entered a default judgment against the defendant in a civil complaint for child custody, child support, alimony, etc. without first appointing counsel for him — despite knowing that he was a soldier stationed in Korea and contrary to the Servicemember’s Civil Relief Act of 2003. The Act provides “in plain language,” the Court explained, that, if it appears that a defendant is in military service, a court may not enter a default judgment until it appoints an attorney to represent the defendant. The soldier and his commanding officer had informed the judge in letters that he could not participate in proceedings before he returned.

The judge entered the default judgment when the defendant did not comply with an order entered after a hearing on the plaintiff’s request for additional information concerning the soldier’s status and future availability. The soldier had not been served with the motion, had no notice of objections to a stay, and was not present or represented at the hearing. At the hearing, plaintiff’s attorney provided the judge with Crossing the Military Minefield: A Judge’s Guide to Military Divorce in North Carolina. The publication details ways that a judge could deny a stay by finding that a servicemember did not show “good faith and diligence” when responding to a court action. The Judicial Standards Commission found that the judge “imprudently” relied on plaintiff’s counsel and failed to “sufficiently perform[] her own independent inquiry and research.” The judge had consented to the reprimand.

The case is also a reminder of the unfortunate action taken by the North Carolina legislature in 2013 eliminating the Commission’s ability to publicly reprimand judges with their consent and without a formal proceeding and eliminating public judicial discipline proceedings, keeping the charges, hearing, and recommendation confidential unless and until the Court decides a judge should be publicly sanctioned. The 2013 bill placed North Carolina in the minority within a minority, joining only 16 other jurisdictions with closed formal hearings and only three jurisdictions (Delaware, Hawaii, and D.C.) in which recommendations are also confidential and proceedings become public only if a court decides on public discipline.

This is the first public discipline in North Carolina since the change was made. (There had been one public sanction in 2013, four in 2012, three in 2011, three in 2010, and three in 2009.) Because of the unjustified extra secrecy imposed in 2013, it is impossible to tell how many recommendations are currently pending before the Court, how many may have been rejected, and why. Therefore, the public cannot evaluate whether the Commission and the Court are diligently protecting the integrity of the judiciary. It is reasonable of the public not to have much confidence in a process that hides so much from its view, particularly when the information used to be available.